Gerbrich v. Freitag

• Decision Date: 21 February 1905
• Citation: 73 N.E. 338,213 Ill. 552
• Parties: GERBRICH v. FREITAG.
• Court: Illinois Supreme Court

213 Ill. 552

73 N.E. 338

GERBRICH

v.FREITAG.

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Proceeding by Henry Freitag for the probate of the will of Hannah Von Gans, deceased, to which Minnie Gerbrich filed objections. From an order of the circuit court admitting the will to probate on appeal from a like order of the probate court, objector appeals. Affirmed.

Livingston & Bach, for appellant.

E. E. Donnelly, for appellee.

CARTWRIGHT, J.

An instrument in writing executed by Ulrich Von Gans and Hannah Von Gans, husband and wife, was offered for probate in the county court of McLean county as the will of said Hannah Von Gans, who died February 15, 1903, leaving, surviving her, her said husband, Ulrich Von Gans, five children by her former husband, Freitag, and Henrietta Ernestine Von Gans, named in the instrument as the daughter of said Ulrich and Hannah. Appellant, who is one of the children of the former marriage, and who was given by the instrument $1, with the statement that she had received other valuable consideration in advance, objected to the probate of the instrument as a will, both because it was not executed according to law, and because it was not such an instrument as could be probated as the will of Hannah Von Gans. The county court admitted the will to probate, and appellant appealed to the circuit court, where it was again admitted to probate, and this is an appeal from the order of the circuit court.

The objection made to the instrument is that it is a joint will, incapable of being probated as the will of Hannah Von Gans while the other maker, Ulrich Von Gans, is living. Two persons may at the same time execute separate wills disposing of their property, and there is no legal objection to uniting the wills in a single instrument if it is such that it may take effect upon the death of one of the parties, so far as it relates to the property of that one. The fact that husband and wife devise their property reciprocally to each other by the same instrument, or that it is a joint or mutual will, does not deprive it of validity, if the will can be given effect on the death of either, so far as the property of that one is concerned. If it is of that character, it may be probated upon the death of one as his or her separate will, and, upon the death of the other, can be again proved as the separate will of the other. Unless the provisions of the instrument are such that the disposition of the property is suspended after the death of one until the death of the other, so that it cannot be executed as the separate will of the deceased party, it is no objection that there is but a single instrument. In re Davis, 120 N. C. 9, 26 S. E. 636,38 L. R. A. 289, 58 Am. St. Rep. 771;Betts v. Harper, 39 Ohio St. 639,48 Am. Rep. 477;Estate of Cawley, 136 Pa. 628, 20 Atl. 567,10 L. R. A. 93; Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751.

In this case the instrument was declared by the parties to be their joint last will and testament. Hannah Von Gans was the owner of 280 acres of land, and also of an undivided one-half of 119 acres of which she and her husband, Ulrich Von Gans, were tenants in common; he owning the other undivided one-half. These lands were their only property. The will provided that the just debts and funeral expenses of the makers should be paid, including a mortgage for $10,000 on the lands, and directed that the five children to whom the lands were devised should each assume the sum of $2,000, or such equalized portion of the mortgage as might remain unpaid at the time of their death. The lands were devised to four of the children of Hannah Von Gans, excluding appellant, and to Henrietta Ernestine Von Gans, in tracts of 80 acres each, except one...